Privilege Issues for In-House Lawyers–Foreign and Domestic–in U.S. Litigation

For all of the rules, statutes, and common-law decisions adopting and applying the attorney–client privilege, the privilege’s application in the corporate setting remains an enigma. And adding in-house lawyers into the privilege mix only increases its perplexity. American law acknowledges the protections of an in-house attorney–client privilege, but “what is unclear is exactly how far this protection extends regarding the corporation’s employees and agents.” E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 718 A.2d 1129, 1141 (Md. Ct. App. 1998).

The privilege protection for corporate-employee communications becomes even more suspect within multinational corporations with foreign-based in-house attorneys. Choice of law and other challenging issues arise when employees communicate with foreign in-house lawyers and third parties later challenge those putatively privileged communications in U.S.-based litigation. Courts recognize that “[d]efining the scope of the privilege for in-house counsel is complicated,” U.S. Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 160 (E.D.N.Y. 1994), and in-house lawyers, whether foreign or domestic, should too.